Monday, September 24, 2007

JAGMAN changes

Phil "My Liege" Cave called my attention to a 20 June 2007 JAGMAN change today. In looking over the new JAGMAN, I saw a few interesting revisions to Chapter 1, which provides implementing regulations for the Manual for Courts-Martial.

Probably the most significant is the change to Section 0151a, which now requires the convening authority to act on a case not more than 120 days after adjournment. Section 0151(a)(1) now provides, in part: "In all cases the convening authority or other person authorized to act shall act in a case as soon as possible, and not more than 120 days after adjournment of the court-martial." Section 0151(a)(4) also imposes a reporting requirement where this deadline isn't met:

In any case where the convening authority fails to take action within 120 days of adjournment of the court-martial, the convening authority shall report, in writing, signed personally by the convening authority, this fact and the reasons why the action was not taken to OJAG (Code 20) or to the Commandant of the Marine Corps (JAM), as appropriate, and append a copy of the explanation to the record of trial.

In another change affecting court-martial practice, Section 0131b(4)(d) is revised to enlarge the pool of counsel eligible to be IMCed by changing the geographic non-availability range from 100 miles from the site of trial to 500 miles from the site of trial. (Note that under both the old rule and the new rule, a counsel who is beyond that geographic limit is not considered unavailable due to distance if the counsel is within the same judicial circuit.)

Several of the JAGMAN's NJP provisions were revised. For example, the summary of revisions tells us that in Section Ol08c, "Additional language defines the term 'attached to or embarked in a vessel' as it relates to the right to demand trial by court-martial and provides further guidance on this subject." This section, which construes the NJP refusal right's vessel exception, now provides:

(1) For purposes of this section, the term "attached to or embarked in a vessel" means that the person is assigned or attached via written or oral orders, either permanent or temporary, to a vessel, or is on board for passage, or is assigned or attached to an embarked staff, unit, detachment, squadron, team, air group, or other regular organized body. The orders may apply individually to the person, or they may apply to the unit of which the person is a member.

(2) No one may be ordered to a vessel solely for the purpose of limiting the ability to demand trial by court-martial in lieu of nonjudicial punishment.

In the "technology is good" department, Section OllOd offers alternatives to the accused's personal appearance at NJP. The section provides:

Ordinarily, before nonjudicial punishment may be imposed, the service member shall be entitled to appear personally before the authority imposing nonjudicial punishment. However, when personal appearance is prevented by the unavailability of the nonjudicial punishment authority, or by extraordinary circumstances, the nonjudicial punishment proceedings may be conducted telephonically, via video teleconference, or other similar remote means which provide for two-way voice communication. These alternatives are in addition to those already provided for in paragraph 4 (c) of Part V, MCM. The service member shall be notified in writing prior to the imposition of nonjudicial punishment of the circumstances warranting an alternative to personal appearance.


John O'Connor said...

"(2) No one may be ordered to a vessel solely for the purpose of
limiting the ability to demand trial by court-martial in lieu of nonjudicial

Darn it, that ruins my proposed solution for the accused who accepted a SCM but then filed a writ that, through the intellectual laziness of the reviewing court, resulted in a stay of the summary court-martial.

And, yes, I am kidding. Sort of.

Anonymous said...

For another significant change to the JAGMAN, check out section 0123. The requirement to obtain SECNAV approval to court-martial certain accused (retired/reserve personnel, etc.) is now jurisdictional. Cf. U.S v. Morris, 54 M.J. 898 at n.5 (NMCCA 2001).

Section 0123a(1) expressly withholds from subordinate convening authorities the authority to refer charges to trial (although not cited, it appears the section is relying on RCM 306(a) for its authority to "withhold the authority to dispose of offenses...").

It seems clear to me that any charges referred in violation of the new section would have to be dismissed. I also think the section could inure to the government's benefit if some subordinate authority cut too sweet deal with a covered accused -- without first complying with this section -- and then news of the deal hit the press. Since any prior court would have lacked jurisdiction, the prior findings and sentence would be void and the accused could be subject to re-trial at a more appropriate forum or under more appropriate terms.